102-NLR-NLR-V-58-SARLS-SILVA-Appellant-and-L.-G.-SUMATHIPALA-Respondent.pdf
1956Present: H. N. G. Fernando, J.
SARIS SILVA, Appellant, and L. G. SU.'LVTHIPALA, RespondentS. C. ISO—C. P. Badtilla – IIa Idum nl/a, 3,3 Sd
Jlent Jlcstrlction .-let—'‘Alternative accommodation’’— Harden of proof.
Whore a landlord seeks ejectment of his tenant on the ground that thopremises let are reasonably required for occupation by him, tho tenant neednot prove that lie tried to look for nltornntieo accommodation for himself ifthere is already sufficient proof that tho landlord has nt his disposal suitablepremises which he can without difficulty appropriate for his own uso.
-/^-PPRAL from a judgment- of the Court of Requets, Radulla-HaldiunuHa.
Sir Lolita EajapnJ:-<e. Q.C., with V. C. Guna.tila.ka, for the- plaintiff-appellant,
G. G. Weeramantry, for the defendant-respondent.
Cur. adv. vult.
October 22, 1956. H. N. O. Fjerxaxdo, J.—•
This was an action for ejectment- of the defendant from a small boutiquein Koslanda on the ground that the boutique is reasonably required foroccupation as a place of residence by the plaintiff. The learned Com-missioner has dismissed the plaintiff’s action on the ground that thonotice to quit was insufficient in law. It is conceded by the defendant’scounsel that the notice was sufficient and the judgment cannot be sup-ported on that ground. I have however to deal with the facts of the. case.
It would appear that of a row of four contiguous boutiques the plaintiffwas a tenant of one and the defendant of another, both occupied for thepurposes of business. The defendant’s boutique was No. 9S (now No. 43)and was used by him as a store and for some few months prior to the dateof action also as a garage for his car.
In April 1955 the plaintiff’s wife bought the row of four boutiques andwithin a short time the defendant was given notice to quit No. 98. Theplaintiff had apparent!}' been ejected from liis former place of residenceand he commenced to use one of the remaining boutiques as a kitchenand also as a store ; he and his two sons who assist him in his businesssleep either in the boutique he had all the time or in the second one whichhe appropriated for his own use after the purchase. The plaintiff’sclaim is that his wife resides partly at Koslanda and partly at Kateluwawhere the plaintiff’s daughters stay in order to attend school. He allegesthat he requires the use of No. 98 mainly because his wife has no placeto occupy on her periodical visits to Koslanda.
It is in evidence that the plaintiff owns three other boutiques which,are situated on another road but are yet within thirty feet from No. 98.According to his evidence all the three boutiques were at the time ofthe trial rented out to three different persons one of whom is a personcalled Simon. The plaintiff's own witness, the Village Headman, howeverstated in evidence that the boutique alleged to have been rented out toSimon was vacant.
Upon this evidence the learned Commissioner was strongly of theview that the plaintiff would not require premises in Koslanda for hiswife and other children and also that the “ plaintiff will not be prejudicedas he still has a room in his own premises thirty feet away ”, referringobviously to the bout ique stated by the Headman to be vacant. Despite.this strong opinion in favour of the defendant however, the Commissionerfelt bound, in view of certain authorities to which he had been referred,to hold against the defendant on the ground that there was no evidencethat he liad tried to look for alternative accommodation. With regard tothis matter counsel for the appellant relied on tire decision in 50 N. L. R. d3.It is clear, however, that that decision is one based on the facts andnot on a question of law. In brief it is to the effect that once a plaintifflandlord has shown that he reasonably requires premises for his ownoccupation, the failure of the tenant to search for alternative accommo-dation will of may negative the plea that the tenant also reasonablyrequires the premises for himself. That decision, however, does not, nor doI imagine, any of the earlier decisions, establish that in a competitionbetween tire landlord and tenant the latter must necessarily prove thelack of alternative accommodation. A landlord who seeks to resumeoccupation has the burden of proving that lie reasonably requires thepremises. That burden may be prima facio discharged by evidence of bisneeds whether for purposes of residence or of business. But so soon asit is shown that the landlord has at his disposal suitable premises whichhe can without difficulty appropriate for his own use, then, in my opinion,his requirement that the tenant should vacate the premises for his benefitceases to be reasonable. In the present case the position at the close ofthe evidence tendered by the plaintiff was that there was available to himthirty feet away from No. 9S a boutique about the same area as No. 98consisting, as did No. 9S, of a verandah and inner room and a kitchen. Itwas for the plaintiff to showr then affirmatively that this alternativeaccommodation was cither not- available in fact or else was far less suitablefor his purposes than No. 9S. Having failed to furnish evidence on eitherof these matters the plaintiff, in my opinion, failed to discharge the burdenof proving that lie reasonably required No. 98 for purposes of residence orbusiness.
I was strongly pressed to send the case back for a fresh trial. It ismanifest, however, from the evidence and the judgment that the Commis-sioner was prevented from giving judgment.for the defendant on the factssolely because he took an erroneous* view as to the duty of the defendantto prove a lack of an alternative accommodation.
For the reasons I have set out I would affirm the decree of dismissalentered bv the learned Commissioner and dismiss this apjjeal with costs.